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James Hays is a partner in the firm's New York office and a leader of the Traditional Labor Law Team.

On the heels of the Labor Day weekend, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking and request for comments (NPRM) that would once again change the joint employer legal standard. The proposed regulations roll back the employer-friendly rule the NLRB finalized during the Trump administration.

Continue Reading NLRB Releases Proposed Joint Employer Rule Rolling Back Trump-Era Standard

On July 13, 2022 the National Labor Relations Board (“NLRB” or the “Board”) announced that by May 25th, 2022 the number of union representation petitions filed with the Board surpassed the total number of petitions filed in all of Fiscal Year 2021. Representation petitions are requests to have the NLRB conduct an election to determine if employees wish to be represented by a union. During the first nine months of Fiscal Year 2022 (October 1-June 30), 1,935 representation petitions were filed with the Board. This represents a 56% increase from the 1,240 filed in the first three quarters of FY2021. The Board also noted that, in addition to the rise in petitions, the number of unfair labor practice charges increased from 11,451 to 13,106 – 14.5% – during that same time period.

Continue Reading Union Election Petitions on the Rise, Total Number of FY21 Petitions Eclipses in First Three Quarters of FY22

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions.  Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws.  Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination, potentially signaling similar actions related to the use of artificial intelligence in the employment context.  Below are some key takeaways on the new guidance.

Continue Reading EEOC Issues Guidance Regarding How Employer Software and Artificial Intelligence May Discriminate Against Individuals With Disabilities

In contravention of decades-old precedent, employers may be required to recognize unions without a secret ballot election, thereby denying employers the opportunity to protect the private choice of their employees. The National Labor Relations Board’s (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, argued that the Board should reinstate the recognition process and expand the ability of the Board to order an employer to bargain with a union even without its winning an election.

Continue Reading NLRB General Counsel Seeks to Reinstate Radical Standard for Union Recognition and Restrict Employer Free Speech During Corporate Organizing Campaigns

Under well-settled, decades-old precedent, employers have historically been free to hold mandatory “captive audience” meetings to educate employees, share views on unionization, and discuss what employees’ rights are with respect to the same. However, on April 7, 2022, the NLRB General Counsel (“GC”) issued a memorandum stating her intent to ask the National Labor Relations Board (“Board”) to reconsider this rule, and overturn 75 years of precedent allowing an employer to hold “captive audience” meetings. Notwithstanding the plain wording of Section 8(c) of the NLRA, the GC takes the position that such mandatory meetings are inconsistent with employees’ rights under the NLRA. According to the GC, “captive audience” meetings chill employees’ Section 7 rights to refrain from listening to employer speech regarding unionization. She argues that employers typically use threats to coerce employees to attend mandatory meetings, and therefore these meetings fall outside the scope of statutory and constitutional free speech protections. Instead, she will urge the Board to require that an employer must make clear to employees that their attendance at these meetings is truly voluntary. While this memorandum does not change current law, it signals the GC’s intent to bring unfair labor practice charges against an employer for holding “captive audience” meetings in order to bring the issue before the Board.

Continue Reading NLRB General Counsel Will Ask the Board to Find That Captive Audience Meetings Violate the NLRA

The National Labor Relations Board (Board or NLRB) could reverse a 2019 decision holding that honest, albeit mistaken, classification decisions and announcements to employees do not violate the National Labor Relations Act (the NLRA). On March 17, 2022, General Counsel of the NLRB issued a Complaint against Deco Logistics, Inc. d/b/a Container Connection and its affiliates (collectively Deco Logistics), alleging that Deco Logistics violated the NLRA by misclassifying drivers as independent contractors as well as other conduct that allegedly violated the workers’ Section 7 rights to organize, such as interrogating a driver about union activities and retaliating against drivers for assisting the union’s organizing campaign. The Complaint seeks an affirmative order that Deco Logistics reclassify its independent contractors as employees, and compensation for any harm the workers incurred as a result of the misclassification as independent contractors.

Continue Reading NLRB to Decide Whether Misclassification Is Standalone Violation of the NLRA

The National Labor Relations Board is pushing forward with its plan to cooperate more closely with other Federal agencies tasked with overseeing employment law. This follows an announcement in November 2021 that the National Labor Relations Board and Equal Employment Opportunity Commission would work together on activities to raise awareness about retaliation issues in the workplace.  The agencies announced that they would increase collaboration between the agencies on information sharing and public engagement with the employer community, business and labor organizations, and civil rights groups.
Continue Reading NLRB General Counsel Issues Memorandum on Increased Inter-Agency Coordination, Collaboration

The National Labor Relations Board (the “NLRB” or “Board”) seemingly took very little time off during the holidays and in the last few weeks announced that it is seeking public input on whether to reconsider two significant standards. First, on December 27, 2021, the NLRB issued a notice inviting parties to submit briefs on whether it should reconsider its standard for determining independent contractor status. Second, on January 6, 2022, the Board invited parties to file briefs on whether it should continue to adhere to the standard established for determining whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”). These invitations come hot on the heels of the Board’s December 7th invitation for briefing on its standard for determining appropriate bargaining units.

Continue Reading NLRB Rings in the New Year by Inviting Briefing on Multiple, Far-Reaching Standards Impacting Employers

As we previously predicted, significant changes are taking place at the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been in the agenda set by General Counsel Jennifer Abruzzo. Now, President Biden has had the opportunity to impact the composition of the Board itself and thus Board law. President Biden has appointed, and the Senate confirmed, two new democratic members to the NLRB: David Prouty and Gwynn Wilcox, who are both former union lawyers. This gives the Democrats a majority on the Board and indicates a strong likelihood that President Biden’s pro-labor agenda will be approved by the Board. It appears that we now know the first significant change this newly constituted Board will tackle.

Continue Reading NLRB Foreshadows a Return to Union Gerrymandered Bargaining Units

On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS).  This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated.  While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022.  Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.

Continue Reading OSHA Emergency Temporary Standard Survival Guide

As we previously reported, the National Labor Relations Board (“NLRB” or the “Board”) has been undergoing a seismic change of direction. With two memoranda published September 8th and September 15th, NLRB General Counsel (“GC”) Jennifer Abruzzo looks to take further progress toward fulfilling President Biden’s promise to be the “strongest labor President you have ever had.” Following NLRB Chairman McFerran expressly stating her willingness to explore new remedies for unfair labor practice violations, GC Abruzzo has instructed the regional offices to seek expanded remedies in Unfair Labor Practice (“ULP”) litigation and settlement negotiations.

Continue Reading NLRB General Counsel Issues Memos Calling for New Harsher Penalties for Unfair Labor Practice Violations